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Government. It cannot be compelled to examine claims for somebody to undertake to review later.

(Mr. Shea submitted the following statement:)

The case of Muskrat v. United States,|(219 U. S. 346), involved an act of Congress passed in 1907, authorizing certain persons to sue in the Court of Claims to determine the constitutionality of earlier statutes, and provided for a right of appeal from the decision of the Court of Claims to the Supreme Court. The Supreme Court held the 1907 act unconstitutional in that it attempted to obtain a determination in the Supreme Court of a question not presented in a "case" or a "controversy", and thus in the nature of an advisory opinion. Further, the Court held that the provision for jurisdiction by the Court of Claims over the matter in question was inseparable from the provision for review by the Supreme Court, and hence must also fall with the invalidity of the latter power.

There is nothing in the Muskrat case inconsistent with the propositions, established in later decisions of the Supreme Court, that the Court of Claims may exercise judicial power not arising under article III of the Constitution; that its decisions can properly be made subject to review by the Supreme Court; and that the United States district courts may properly be given jurisdiction concurrent with the Court of Claims of cases involving such non-article III judicial power. Mr. CRAVENS. Mr. Gwynne, the payment of these claims is a matter of gratuity on the part of Congress and is a legislative act. Mr. GWYNNE. That is right.

Mr. CRAVENS. And the Congress has no power to tell the judiciary you have got to do these things.

Mr. GWYNNE. No, not quite. I do not believe we can require a district court to try these claims and then have them submitted for review by a purely legislative tribunal.

Mr. CRAVENS. That goes back to the point of paying these claims being purely a judicial function by a decision of a court, and Congress has not the power to change that judicial decision.

The CHAIRMAN. Gentlemen, may I suggest you dispose of this constitutional question later on while Mr. Shea is not here, and let him run through with the bill?

Mr. BARNES. Mr. Chairman, may I ask a question?

The CHAIRMAN. Yes.

Mr. BARNES. Mr. Shea, this bill provides, as I understand it, the head of a department can pay a claim up to $1,000 if the head of the department and also the Department of Justice feel it is justifiable. Suppose he has a claim for $3,000, he would then be compelled to go to court?

Mr. SHEA. Yes.

Mr. BARNES. Or the Attorney General could come in and compromise that case?

Mr. SHEA. Yes.

Mr. BARNES. That forces the man to go to court.

What do you think of a provision where a claim is in excess of $1,000 and between it and $7,500 to avoid the necessity of loss of time and avoid the necessity of going to court to allow it to be compromised? Mr. SHEA. There is very little loss of time. If he files a complaint then the Attorney General can compromise or settle it.

Mr. BARNES. But he goes into court.

Mr. SHEA. He files his complaint. I think the procedure is proper. It is not at all cumbersome. But I think instances of that character are not likely to be so numerous, nor the difficulty of filing a complaint so great, as to make a provision such as you suggest at all necessary.

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Mr. BARNES. The only thing I had in mind was where the same thing could be done without the necessity of filing a suit.

There is nothing in the act about parties, in the case of minors how that suit is brought, or in case of death.

Mr. SHEA. That is covered exclusively by State law. The United States is to be liable to the same claimants as a private individual under like circumstances.

The CHAIRMAN. Mr. Shea, I imagine you are pretty busy. What else do you have in your bill which you would like to call attention to, just the highlights of the bill.

Mr. SHEA. Sir, I have a statement here, which takes that up point by point. I will leave that with the committee and try to cover the highlights at this point.

The CHAIRMAN. Very well, you may do that. (The statement referred to is as follows:)

H. R. 6463, the bill now under consideration, would authorize Federal agencies to adjust and settle tort claims against the United States not in excess of $1,000, for property loss or damage, personal injury, or death caused by the fault of any Government officer or employee acting within the scope of his employment. The bill would also confer exclusive jurisdiction upon the United States district courts over claims of this type, up to a maximum of $7,500, with a right of appeal to the Court of Claims.

If enacted, H. R. 6463 would broaden the existing authority to make administrative adjustment of tort claims, extending it to include claims for personal injury and death as well as for property loss or damage. It would also remove an existing inequality in our law which permits suit to be brought against the United States for certain types of tort claims, such as admiralty and maritime torts, and yet precludes suit on the ordinary common-law type of tort, such as personal injuries or property damage resulting from negligent operation of an automobile. By giving claimants a day in court in respect of common-law torts committed by Government employees in the course of their employment, the bill will cut down substantially the number of private relief bills introduced to remedy such grievances. It will thereby remove a considerable and expensive burden from the shoulders of the Claims Committee of both Houses of the Congress, as well as from the Congress as a whole, thus affording added time for consideration of matters of far greater public moment. As you know, the President, in his message, laid great stress on this consideration in urging such legislation at the present time.

The justification for the historical immunity of the Government from suit to redress wrongs committed by its agents has been of doubtful validity at least since the foundation of our Nation. As early as 1855, Congress established the Court of Claims and gave consent to suits against the United States in that court upon claims founded on contract or Federal law or regulation. In 1887 this authorization was enlarged to include all cases for damages not sounding in tort, and the United States district courts were given concurrent jurisdiction of claims up to $10,000. Soon the ban upon suits against the Government began to be lifted in certain cases sounding in tort. For example, in 1910, Congress consented to suits against the United States in the Court of Claims for patent infringement. During the first World War, when the Government took over operation of the railroads and other utilities, Congress made the United States subject to the same responsibility for property damage, personal injury, and death as the private owners themselves would have been. A few years later, in 1920 and 1925, the Government consented to suits in the district courts upon admiralty and maritime torts involving Government vessels, without limitation as to amount.

The past 85 years have thus witnessed a steady encroachment upon the doctrine of sovereign immunity. Yet there remains a large and important category of wrongs for which there is as yet no satisfactory remedy-the ordinary common law type of torts, such as personal injury or property damage caused by the negligent operation of an automobile by a Government employee in the course of his employment. A citizen who suffers injury or damage in such a case must now apply to the Federal agency concerned for administrative settlement or to his Congressman for the introduction of a special relief bill.

The power of administrative adjustment is decidedly limited. The act of December 28, 1922,1 authorizes the heads of the departments and independent establishments to adjust and determine claims up to $1,000 for property loss or damage caused by the negligence of a Government employee acting within the scope of his employment, and to certify the award to Congress as a legal claim for payment. A few Government agencies are specially authorized to make similar administrative adjustments of claims for personal injuries up to $500. While the remedy given by these statutes is better than no remedy at all, it is generally recognized that the present procedure for administrative adjustment is very inadequate. Besides the restricted scope of administrative settlement, the claimant has no right to test in court the accuracy or fairness of the award, which may be based upon a purely ex parte investigation. That the aggrieved person has a right to sue the Government employee personally is not a sufficient answer because not infrequently the employee is not financially capable of meeting a sizable judgment, and as a rule, the loss or injury occurs in situations in which the Government should in all conscience bear the responsibility.

The ultimate recourse of a claimant who fails to obtain satisfactory administrative relief is to seek a private relief bill. During the past 20 years, the system of redressing Government torts by private bill has been the subject of strong criticism by Members of the Congress, including those on the Claims Committee who have had the most direct contact with such bills. In committee reports, in speeches and debates, Members of the Congress have urged that relief of Government employees' torts by private bill is unfair to the claimants and excessively burdensome to the Congress. More than 2,000 private relief bills are introduced in each Congress. Any single bill has little better than a 15 percent chance of being enacted, and even these may require diligent pursuit of the matter for years. As the reports and statements of the Claims Committees show, the limited time available for consideration of each private bill renders impossible a full hearing to each claimant, and there is no opportunity for examination and cross-examination of witnesses or receipt of testimony. The result, according to these sources, is a hasty investigation generally entrusted to a single committeeman, consisting in most cases of an ex parte presentation of the facts by affidavit. After the bill is considered and approved by the full committee, it must be considered and sometimes debated in the pertinent House of Congress. This process is then repeated in the other Chamber. In view of the short period allocated to the private claim calendar and the pressure of matters of greater public importance, a private claim bill frequently fails to pass both Houses in the same session, requiring its reintroduction in the succeeding session. The foregoing criticisms come from the statements and writings of members of the Claims Committee and other Congressmen exclusively.

There have been a number of attempts to provide an adequate remedial procedure in the place of the system of redressing Government torts by private relief bills. As early as 1919, it was proposed in the House that the Federal agencies be authorized to adjudicate and settle all tort claims, with appeal to the Court of Claims where the amount exceeded $2,000. The act of December 28, 1922, providing for settlement of property claims up to $1,000 partially met this proposal, but the inadequacy of that procedure was soon recognized. In 1926, the House passed a bill providing for administrative adjustment of property claims up to $5,000, with jurisdiction in the district courts and the Court of Claims over property claims in excess of that amount, and jurisdiction in the United States Employees' Compensation Commission over claims for personal injury and death up to $5,000. In 1929, the Congress passed a Federal Tort Claims Act authorizing the General Accounting Office to settle claims up to $50,000 for property loss or damage, with review by certiorari in the Court of Claims, and empowering the General Accounting Office to audit and settle claims for personal injury and death up to $7,500 after consideration and report thereof by the Employees' Compensation Commission. This bill was vetoed by the President for procedural reasons. In the Seventy-sixth Congress, the House passed H. R. 7236, a bill introduced by Congressman Celler, similar in its general scope and treatment of the problem to H. R. 6463, the bill now under consideration by this committee. H. R. 5373, a bill virtually identical with H. R. 7236 as it passed the House in the last Congress, was introduced by Congressman Celler in the present Congress and is now pending before the Committee on the Judiciary of the House of Representatives.

1 42 Stat. 1006, 31 U. S. C., § 215.

DISCUSSION OF H. R. 6463 AND COMPARISON WITH H. R. 5373

The following is a brief discussion of H. R. 6463, the bill now under consideration by this committee:

TITLE IDEFINITIONS

Title I contains definitions of certain words and phrases, which make it clear that the act covers all Federal agencies including corporate instrumentalities, and all Federal officers and employees, including members of the military and naval forces and temporary and uncompensated employees.

TITLE II-ADMINISTRATIVE ADJUSTMENT

Title II provides for administrative adjustment of tort claims against the United States up to $1,000, to be exercised by the head of the agency or his designee. Administrative settlement may be made not only of claims for property loss and damage (as may now be done under the 1922 act), but also of claims for personal injury and death. Awards made by the Federal agency are final and conclusive upon all officers of the Government, except for fraud, and if claimant accepts the award, he thereby releases his claim both against the United States and against the employee whose negligence or wrongful conduct gave rise to the claim. Section 202 of title II requires that the Federal agencies make an annual report to the Congress of all claims settled or determined.

COMPARISON OF H. R. 6463 WITH H. R. 5373

In respect of administrative settlements, H. R. 6463 differs from H. R. 5373 in the following respects:

(1) Federal agencies may consider and determine claims for death, as well as for personal injury and property damage. Although it is not likely that many such claims will be in amounts under $1,000, the right to adjust them may prove useful in some situations.

(2) Under H. R. 5373, it is probable that local law would determine the liability of the United States in suits on tort claims, but nothing is said of administrative settlements. H. R. 6463 makes it clear that local law applies to the administrative determination of such claims as well as to suits thereon. Uniformity in this respect is obviously desirable.

(3) H. R. 6463 makes no provision for review by the Attorney General of awards between $500 and $1,000, as did H. R. 5373. Such a review would inevitably involve a considerable duplication of investigation and study of the claim. The amount involved in this category of claims appears to be insufficient to justify the added expense of two separate administrative reviews. Since H. R. 6463 omits any provision for review by the Attorney General, the rulemaking power which he was given in section 2 of H. R. 5373 has likewise been omitted.

(4) Under H. R. 6463, acceptance of the award will release the delinquent employee, as well as the Government, from any liability to the claimant. It is just and desirable that the burden of redressing wrongs of this character be assumed by the Government alone.

(5) The finality of the administrative award is subject to an exception where recovery has been obtained by fraud.

TITLE III-SUITS ON TORT CLAIMS

Title III sets up the machinery for the judicial determination of tort claims against the United States. By section 301 the Federal district courts are given exclusive jurisdiction of claims against the United States up to $7,500 on account of property loss or damage, personal injury or death, caused by the negligent or wrongful act or omission of any officer or employee of the Government while acting in the course of his employment. The liability of the United States in such cases is to be the same as that of a private individual, subject to the limitations of the bill, and is to be determined under the local law, except that no punitive damages, interest, or costs may be assessed against the Government. Local law is to govern not only the matter of liability but also such defenses as contributory negligence, aggravation of damages, and the like, and the beneficiaries entitled to distribution of the recovery in death cases. If a claim has been presented to a Federal agency for administrative settlement, suit may not be brought thereon until either official disposition has been made by the agency or until the claim has

been withdrawn by the claimant after notice. The judgment in any such suit constitutes a bar to any action by the claimant against the Government employee upon the basis of the same claim.

A claimant may not bring an action for an amount greater than the claim which he filed with a Federal agency, in the absence of intervening facts or newly discovered evidence, but the disposition by the Federal agency is not competent evidence in a suit on the same claim either as to liability or amount of damages. Such a provision is desirable, since otherwise a claimant would stand only to gain by pursuing both the administrative and the judicial remedies. If he is dissatisfied with the award and wishes to litigate the claim, the Government should be free to defend it de novo. By the same token, rejection of the claim by the Federal agency cannot be introduced in court by the Government as evidence of nonliability. However, the date of disposition of the claim by the Federal agency will be admissible in evidence to determine whether the statute of limitations has run against the suit. Also, the amount claimed before the Federal agency may be shown to limit, in the absence of intervening facts or newly discovered evidence, the allowable demand for judgment. This latter point does not, of course, involve any showing as to the disposition of the claim.

Section 302 of title III makes the Federal Rules of Civil Procedure applicable to tort claims in district courts, so that the procedure will be the same as in tort suits between private litigants. The decisions of the district courts are reviewable in the Court of Claims only which is, however, required to conform its rules in such appeals to those relating to appeals from district court decisions to the circuit court of appeals. It is in the interests of uniformity to have a single tribunal for review of tort cases against the United States, rather than several coordinate courts of appeals, especially since the subject matter of the suit is a claim against the United States. Review of the decisions of the Court of Claims may be had in the Supreme Court in the same manner as review of the decisions of the circuit courts of appeals.

COMPARISON OF H. R. 6463 WITH H. R. 5373

In respect of litigation of tort claims against the United States, H. R. 6463 differs from H. R. 5373 as follows:

(1) In lieu of concurrent jurisdiction in the district courts and the Court of Claims, H. R. 6463 vests exclusive original jurisdiction in the district courts sitting as courts of claims without a jury. The district courts have for many years considered and determined such questions as negligence, contributory negligence, causation, and the like in private suits for personal injury or property damage, and are familiar with the local laws and decisions which under H. R. 6463 are to govern the determination of tort claims against the United States. This area of jurisprudence would be new to the Court of Claims, and little would be gained by burdening that Court and its Commissioners with the original determination of such matters.

(2) Conformance to local law is called for by H. R. 6463, not only in respect of the merits of the claim but also in respect of the availability of defenses and the distribution or disposition of the recovery in cases of death. Hence, such provisions in H. R. 5373 as those concerning distribution of compensation for death (sec. 204), defenses of contributory negligence or willful misconduct (sec. 302), aggravation of damages (sec. 304), and payment of recovery in case of death pending the determination (sec. 308), are omitted as unnecessary.

(3) H. R. 5373 would immunize the United States from punitive damages. H. R. 6463 adds immunity from interest and costs.

(4) Tort jurisdiction is given not only to the District Court for Hawaii but also to those for all the Territories and possessions.

(5) Judgment in a tort action constitutes a bar to further action upon the same claim, not only against the Government (as would have been true under H. R. 5373) but also against the delinquent employee, for reasons already discussed in respect of administrative adjustments of claims up to $1,000.

(6) Under H. R. 6463, no action may be brought upon a claim pending before a Federal agency unless withdrawn from it upon notice, and in no case may suit be brought for an amount in excess of the claim filed with the agency unless intervening facts or newly discovered evidence are adduced. The disposition of the claim made by the Federal agency is not to be competent evidence of liability or of amount of damages.

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